CTIA v. Berkeley Preliminary Injunction Decision

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page1 of 35
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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CTIA THE WIRELESS ASSOCIATION,
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For the Northern District of California
United States District Court
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Plaintiff,
v.
THE CITY OF BERKELEY, CALIFORNIA,
et al.,
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No. C-15-2529 EMC
Defendants.
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ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFFS
MOTION FOR PRELIMINARY
INJUNCTION; AND GRANTING
NRDCS MOTION FOR LEAVE TO
FILE AMICUS BRIEF
(Docket Nos. 4, 36)
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As alleged in its complaint, Plaintiff CTIA The Wireless Association (CTIA) is a not-
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for-profit corporation that represents all sectors of the wireless industry, including but not limited
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to manufacturers of cell phones and accessories, providers of wireless services, and sellers of
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wireless services, handsets, and accessories. Compl. 18. Included among CTIAs members are
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cell phone retailers. See Compl. 19. CTIA has filed suit against the City of Berkeley and its City
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Manager in her official capacity (collectively City or Berkeley), challenging a City ordinance
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that requires cell phone retailers to provide a certain notice regarding radiofrequency (RF) energy
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emitted by cell phones to any customer who buys or leases a cell phone. According to CTIA, the
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ordinance is preempted by federal law and further violates the First Amendment. Currently pending
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before the Court is CTIAs motion for a preliminary injunction in which it seeks to enjoin
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enforcement of the ordinance. Having considered the parties briefs and accompanying submissions,
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as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part the
motion.1
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A.
City Ordinance
RF energy is a form of electromagnetic radiation that is emitted by cell phones. In re
Reassessment of FCC Radiofrequency Exposure Limits & Policies, 28 F.C.C. Rcd. 3498, 3585 (Mar.
29, 2013) [hereinafter 2013 FCC Reassessment]. The City ordinance at issue concerns RF energy
emitted by cell phones.
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The ordinance at issue is found in Chapter 9.96 of the Berkeley Municipal Code. It provides
in relevant part as follows:
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FACTUAL & PROCEDURAL BACKGROUND
I.
A.
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A Cell phone retailer shall provide to each customer who buys

or leases a Cell phone a notice containing the following
language:
The City of Berkeley requires that you be provided the
following notice:
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To assure safety, the Federal Government requires that
cell phones meet radio frequency (RF) exposure
guidelines. If you carry or use your phone in a pants or
shirt pocket or tucked into a bra when the phone is ON
and connected to a wireless network, you may exceed
the federal guidelines for exposure to RF radiation.
This potential risk is greater for children. Refer to the
instructions in your phone or user manual for
information about how to use your phone safely.
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B.
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The notice required by this Section shall either be provided to

each customer who buys or leases a Cell phone or shall be
prominently displayed at any point of sale where Cell phones
are purchased or leased. If provided to the customer, the notice
shall include the Citys logo, shall be printed on paper that is
no less than 5 inches by 8 inches in size, and shall be printed in
no smaller than a 18-point font. The paper on which the notice
is printed may contain other information in the discretion of the
Cell phone retailer, as long as that information is distinct from
the notice language required by subdivision (A) of this Section.
If prominently displayed at a point of sale, the notice shall
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The National Resources Defense Council (NRDC) has filed a motion for leave to file an
amicus brief in conjunction with the preliminary injunction proceedings. This motion is hereby
GRANTED. CTIA has failed to show that it would be prejudiced by the Courts consideration of
the brief, particularly because CTIA had sufficient time to submit a proposed opposition to NRDCs
proposed amicus brief.
include the Citys logo, be printed on a poster no less than

8-1/2 by 11 inches in size, and shall be printed in no small than
a 28-point font. The City shall make its logo available to be
incorporated in such notices.
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Berkeley Mun. Code 9.96.030.

The stated findings and purpose behind the notice requirement are as follows:
A.
Requirements for the testing of cell phones were established by

the federal government [i.e., the Federal Communications
Commission (FCC)] in 1996.
B.
These requirements established Specific Absorption Rates

(SAR[2]) for cell phones.[3]
C.
The protocols for testing the SAR for cell phones carried on a
persons body assumed that they would be carried a small
distance away from the body, e.g., in a holster or belt clip,
which was the common practice at that time. Testing of cell
phones under these protocols has generally been conducted
based on an assumed separation of 10-15 millimeters.
D.
To protect the safety of their consumers, manufacturers

recommend that their cell phones be carried away from the
body, or be used in conjunction with hands-free devices.
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Consumers are not generally aware of these safety

recommendations.
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Currently, it is much more common for cell phones to be

carried in pockets or other locations rather than holsters or belt
clips, resulting in much smaller separation distances than the
safety recommendations specify.
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Some consumers may change their behavior to better protect

themselves and their children if they were aware of these safety
recommendations.
H.
While the disclosures and warnings that accompany cell

phones generally advise consumers not to wear them against
their bodies, e.g., in pockets, waistbands, etc., these disclosures
and warnings are often buried in fine print, are not written in
easily understood language, or are accessible only by looking
for the information on the device itself.
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SAR is a measure of the amount of RF energy absorbed by the body from cell phones.
CTIA The Wireless Assn v. City & County of San Francisco, 827 F. Supp. 2d 1054, 1056 (N.D.
Cal. 2011) (Alsup, J.).
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See 47 C.F.R. 2.1093 (setting RF energy exposure limits).
I.
The purpose of this Chapter is to assure that consumers have

the information they need to make their own choices about the
extent and nature of their exposure to radio frequency
radiation.
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Berkeley Mun. Code 9.96.010.
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phones. Data was collected from 459 Berkeley registered voters. See Jensen Decl. 6. Seventy
percent of those surveyed were not aware that the governments radiation tests to assure the safety
of cell phones assume that a cell phone would not be carried against your body, but would instead be
held at least 1- to 15 millimeters from your body. Jensen Decl., Ex. A (survey and results).
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B.
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Prior to issuing the ordinance, the City conducted a telephone survey on the topic of cell
FCC Pronouncements
As indicated by the above, the FCC has set RF energy exposure standards for cell phones.
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The present RF energy exposure limits were established in 1996. See generally FCC Consumer
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Guide, Wireless Devices and Health Concerns, available at
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https://www.fcc.gov/guides/wireless-devices-and-health-concerns (last visited September 17, 2015)
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[hereinafter FCC Consumer Guide]. This was done pursuant to a provision in the
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Telecommunications Act of 1996 (TCA) that instructed the agency to prescribe and make
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effective rules regarding the environmental effects of radio frequency emissions. 104 P.L. 104
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(1996).
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The FCC has also issued some pronouncements regarding RF energy emission and cell
phones, three of which are discussed briefly below.
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First, as CTIA alleges in its complaint,
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FCC KDB Guidelines
[t]he FCCs Office of Engineering and Technology Knowledge

Database (KDB) advises cell phone manufacturers [as opposed to
cell phone retailers] to include in their user manual a description of
how the user can operate the phone under the same conditions for
which its SAR was measured. See FCC KDB, No. 447498, General
RF Exposure Guidelines, 4.2.2(4).
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Compl. 75; see also 2013 FCC Reassessment, 28 F.C.C. Rcd. 3498, 3587 (stating that
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[m]anufacturers have been encouraged since 2001 to include information in device manuals to
make consumers aware of the need to maintain the body-worn distance by using appropriate
accessories if they want to ensure that their actual exposure does not exceed the SAR measurement
obtained during testing).
The relevant guideline from the FCCs KDB Office provides as follows:
Specific information must be included in the operating manuals to

enable users to select body-worn accessories that meet the minimum
test separation distance requirements. Users must be fully informed of
the operating requirements and restrictions, to the extent that the
typical user can easily understand the information, to acquire the
required body-worn accessories to maintain compliance. Instructions
on how to place and orient a device in body-worn accessories, in
accordance with the test results, should also be included in the user
instructions. All supported body-worn accessory operating
configurations must be clearly disclosed to users through conspicuous
instructions in the user guide and user manual to ensure unsupported
operations are avoided. . . .
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FCC KDB, No. 447498, General RF Exposure Guidelines, 4.2.2(4), available at
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https://apps.fcc.gov/oetcf/kdb/forms/FTSSearchResultPage.cfm?switch=P&id=20676 (last visited
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September 17, 2015).
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2.
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The FCC currently has a FCC Consumer Guide regarding wireless devices and health
FCC Consumer Guide
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concerns. In the FCC Consumer Guide, the agency states, inter alia, as follows:
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Several US government agencies and international organizations work cooperatively to
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monitor research on the health effects of RF exposure. According to the FDA and the World
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Health Organization (WHO), among other organizations, to date, the weight of scientific
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evidence has not effectively linked exposure to radio frequency energy from mobile devices
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with any known health problems. FCC Consumer Guide.
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Some health and safety interest groups have interpreted certain reports to suggest that
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wireless device use may be linked to cancer and other illnesses, posing potentially greater
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risks for children than adults. While these assertions have gained increased public attention,
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currently no scientific evidence establishes a causal link between wireless device use and
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cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree
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that more and longer-term studies should explore whether there is a better basis for RF safety
standards than is currently used. The FCC closely monitors all of these study results.
However, at this time, there is no basis on which to establish a different safety threshold than
our current requirements. Id.
Even though no scientific evidence currently establishes a definite link between wireless
device use and cancer or other illnesses, and even though all cell phones must meet
established federal standards for exposure to RF energy, some consumers are skeptical of the
science and/or the analysis that underlies the FCCs RF exposure guidelines. Accordingly,
some parties recommend taking measures to further reduce exposure to RF energy. The
FCC does not endorse the need for these practices, but provides information on some
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simple steps that you can take to reduce your exposure to RF energy from cell phones. For
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example, wireless devices only emit RF energy when you are using them and, the closer the
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device is to you, the more energy you will absorb. Id. (emphasis in original).
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Some parties recommend that you consider the reported SAR value of wireless devices.
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However, comparing the SAR of different devices may be misleading. First, the actual SAR
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varies considerably depending upon the conditions of use. The SAR value used for FCC
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approval does not account for the multitude of measurements taken during the testing.
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Moreover, cell phones constantly vary their power to operate at the minimum power
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necessary for communications; operation at maximum power occurs infrequently. Second,
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the reported highest SAR values of wireless devices do not necessarily indicate that a user is
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exposed to more or less RF energy from one cell phone than from another during normal use
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(see our guide on SAR and cell phones). Third, the variation in SAR from one mobile device
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to the next is relatively small compared to the reduction that can be achieved by the measures
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described above. Consumers should remember that all wireless devices are certified to meet
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the FCC maximum SAR standards, which incorporate a considerable safety margin. Id.
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3.
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Finally, in 2013, the FCC issued its Reassessment. See generally 2013 FCC Reassessment,
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2013 FCC Reassessment
28 F.C.C. Rcd. 3498. One of the components of the Reassessment was a Notice of Inquiry,
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request[ing] comment to determine whether our RF exposure limits and policies need to be
reassessed. Id. at 3500.
We adopted our present exposure limits in 1996, based on guidance

from federal safety, health, and environmental agencies using
recommendations published separately by the National Council on
Radiation Protection and Measurements (NCRP) and the Institute of
Electrical and Electronics Engineers, Inc. (IEEE). Since 1996, the
International Commission on Non-Ionizing Radiation Protection
(ICNIRP) has developed a recommendation supported by the World
Health Organization (WHO), and the IEEE has revised its
recommendations several times, while the NCRP has continued to
support its recommendation as we use it in our current rules. In the
Inquiry, we ask whether our exposure limits remain appropriate given
the differences in the various recommendations that have developed
and recognizing additional progress in research subsequent to the
adoption of our existing exposure limits.
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Id. at 3501.
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The FCC included the following comments in its Reassessment:
Since the Commission is not a health and safety agency, we defer to other organizations and
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agencies with respect to interpreting the biological research necessary to determine what
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levels are safe. As such, the Commission invites health and safety agencies and the public to
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comment on the propriety of our general present limits and whether additional precautions
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may be appropriate in some cases, for example with respect to children. We recognize our
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responsibility to both protect the public from established adverse effects due to exposure to
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RF energy and allow industry to provide telecommunications services to the public in the
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most efficient and practical manner possible. In the Inquiry we ask whether any
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precautionary action would be either useful or counterproductive, given that there is a lack
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of scientific consensus about the possibility of adverse health effects at exposure levels at or
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below our existing limits. Further, if any action is found to be useful, we inquire whether it
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could be efficient and practical. Id. at 3501-02.
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In the Inquiry we ask questions about several other issues related to public information,
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precautionary measures, and evaluation procedures. Specifically, we seek comment on the
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feasibility of evaluating portable RF sources without a separation distance when worn on the
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body to ensure compliance with our limits under present-day usage conditions. We ask
whether the Commission should consistently require either disclosure of the maximum SAR
value or other more reliable exposure data in a standard format perhaps in manuals, at
point-of-sale, or on a website. Id. at 3502.
The Commission has a responsibility to provide a proper balance between the need to
protect the public and workers from exposure to potentially harmful RF electromagnetic
fields and the requirement that industry be allowed to provide telecommunications services
to the public in the most efficient and practical manner possible. The intent of our exposure
limits is to provide a cap that both protects the public based on scientific consensus and
allows for efficient and practical implementation of wireless services. The present
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Commission exposure limit is a bright-line rule. That is, so long as exposure levels are
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below a specified limit value, there is no requirement to further reduce exposure. The limit
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is readily justified when it is based on known adverse health effects having a well-defined
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threshold, and the limit includes prudent additional safety factors (e.g., setting the limit
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significantly below the threshold where known adverse health effects may begin to occur).
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Our current RF exposure guidelines are an example of such regulation, including a
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significant safety factor, whereby the exposure limits are set at a level on the order of 50
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times below the level at which adverse biological effects have been observed in laboratory
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animals as a result of tissue heating resulting from RF exposure. This safety factor can
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well accommodate a variety of variables such as different physical characteristics and
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individual sensitivities and even the potential for exposures to occur in excess of our limits
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without posing a health hazard to humans.4 Id. at 3582.
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Despite this conservative bright-line limit, there has been discussion of going even further
to guard against the possibility of risks from non-thermal biological effects, even though
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Some contend that RF energy can have both thermal biological effects and nonthermal
biological effects. See, e.g., Miller Decl. 7, 10-14 (noting that RF radiation is non-ionizing
radiation, that [n]on-ionizing radiation can harm through thermal effects, usually only in high
dosage, and that [t]here is an increasingly clear body of evidence that non-ionizing radiation can
harm through non-thermal effects as well, including cancer; adding that the evidence indicates that
RF fields are not just a possible human carcinogen but a probable human carcinogen). The safety
factor built in by the FCC seems to be addressed to the thermal biological effects only.
such risks have not been established by scientific research. As such, some parties have
suggested measures of prudent avoidance undertaking only those avoidance activities
which carry modest costs. Id. at 3582-83 (emphasis added).
Given the complexity of the information on research regarding non-thermal biological
effects, taking extra precautions in this area may fundamentally be qualitative and may not
be well-served by the adoption of lower specific exposure limits without any known,
underlying biological mechanism. Additionally, adoption of extra precautionary measures
may have the unintended consequence of opposition to progress and the refusal of
innovation, ever greater bureaucracy, . . . [and] increased anxiety in the population.
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Nevertheless, we invite comment as to whether precautionary measures may be appropriate
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for certain locations which would not affect the enforceability of our existing exposure
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limits, as well as any analytical justification for such measures. Id. at 3583.
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We significantly note that extra precautionary efforts by national authorities to reduce
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exposure below recognized scientifically-based limits is considered by the WHO to be
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unnecessary but acceptable so long as such efforts do not undermine exposure limits based
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on known adverse effects. Along these lines, we note that although the Commission supplies
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information to consumers on methods to reduce exposure from cell phones, it has also stated
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that it does not endorse the need for nor set a target value for exposure reduction, and we
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seek comment on whether these policies are appropriate. We also observe that the FDA has
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stated that, available scientific evidence including World Health Organization (WHO)
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findings released May 17, 2010 shows no increased health risk due to radiofrequency (RF)
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energy, a form of electromagnetic radiation that is emitted by cell phones. At the same
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time, the FDA has stated that [a]lthough the existing scientific data do not justify FDA
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regulatory actions, FDA has urged the cell phone industry to take a number of steps,
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including ... [d]esign[ing] cell phones in a way that minimizes any RF exposure to the user.
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We seek information on other similar hortatory efforts and comment on the utility and
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propriety of such messaging as part of this Commissions regulatory regime. Id. at 3584-
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Commission calculations similar to those in Appendix D suggest that some devices may not
be compliant with our exposure limits without the use of some spacer to maintain a
separation distance when body-worn, although this conclusion is not verifiable for individual
devices since a test without a spacer has not been routinely performed during the body-worn
testing for equipment authorization. Yet, we have no evidence that this poses any significant
health risk. Commission rules specify a pass/fail criterion for SAR evaluation and equipment
authorization. However, exceeding the SAR limit does not necessarily imply unsafe
operation, nor do lower SAR quantities imply safer operation. The limits were set with a
large safety factor, to be well below a threshold for unacceptable rises in tissue temperature.
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As a result, exposure well above the specified SAR limit should not create an unsafe
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condition. We note that, even if a device is tested without a spacer, there are already certain
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separations built into the SAR test setup, such as the thickness of the mannequin shell, the
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thickness of the device exterior case, etc., so we seek comment on the implementation of
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evaluation procedures without a spacer for the body-worn testing configuration. We also
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realize that SAR measurements are performed while the device is operating at its maximum
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capable power, so that given typical operating conditions, the SAR of the device during
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normal use would be less than tested. In sum, using a device against the body without a
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spacer will generally result in actual SAR below the maximum SAR tested; moreover, a use
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that possibly results in non-compliance with the SAR limit should not be viewed with
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significantly greater concern than compliant use. Id. at 3588.
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II.
A.
DISCUSSION
Legal Standard
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
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balance of equities tips in his favor, and that an injunction is in the public interest. Network
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Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (quoting Winter v.
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Natural Res. Defense Council, Inc., 555 U.S. 7 (2008) (rejecting the position that, when a plaintiff
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demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered
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based only on a possibility of irreparable harm)). The Ninth Circuit has held that the serious
questions approach survives Winter when applied as part of the four-element Winter test. In other
words, serious questions going to the merits and a hardship balance that tips sharply toward the
plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test
are also met. See Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).
B.
Likelihood of Success on the Merits

As noted above, the thrust of CTIAs complaint is twofold: (1) the Berkeley ordinance is
preempted by federal law and (2) the ordinance violates the First Amendment. Thus, the Court must
evaluate the likelihood of success as to each contention.
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The specific preemption argument raised by CTIA is conflict preemption.5 Conflict
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preemption is implicit preemption of state law that occurs where there is an actual conflict between
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state and federal law. Conflict preemption arises when [1] compliance with both federal and state
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regulations is a physical impossibility, . . . or [2] when state law stands as an obstacle to the
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accomplishment and execution of the full purposes and objectives of Congress. McClellan v. I-
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Flow Corp., 776 F.3d 1035, 1040 (9th Cir. 2015).
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Preemption
Here, CTIA puts at issue only obstacle preemption, not impossibility preemption. Under
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Supreme Court law, [w]hat is a sufficient obstacle is a matter of judgment, to be informed by
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examining the federal statute as a whole and identifying its purpose and intended effects. Crosby v.
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Natl Foreign Trade Council, 530 U.S. 363, 373 (2000). If the purpose of the [federal] act cannot
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otherwise be accomplished if its operation within its chosen field must be frustrated and its
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provisions be refused their natural effect the state law must yield to the regulation of Congress
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within the sphere of its delegated power. Id.
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In the case at bar, the federal statute at issue is the TCA, which [inter alia] directed the FCC
to make effective rules regarding the environmental effects of [RF] emissions within 180 days of
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CTIA has claimed only conflict preemption and not other kinds of preemption such as e.g.,
field preemption. See, e.g., Reply at 12-13 (arguing that the City challenges a field preemption
argument that CTIA does not raise) (emphasis in original).
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the TCAs enactment [in 1996]. Farina, 625 F.3d at 106; see also 47 C.F.R. 2.1093 (setting
exposure limits). CTIA argues that the purposes underlying the statute are twofold: (1) to achieve a
balance between the need to protect the publics health and safety and the goal of providing an
efficient and practical telecommunications services for the publics benefit and (2) to ensure
nationwide uniformity as to this balance. In support of this argument, CTIA relies on the Third
Circuits decision Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010).
The Court agrees with CTIA that Farina is an instructive case with respect to the purposes
underlying the above TCA provision. In Farina, the plaintiff sued on the ground that cell phones,
as currently manufactured, are unsafe to be operated without headsets because the customary manner
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in which they are used with the user holding the phone so that the antenna is positioned next to his
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head exposes the user to dangerous amounts of radio frequency (RF) radiation. Id. at 104. The
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Third Circuit held that the plaintiffs lawsuit was subject to obstacle preemption. The court noted
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first that, although [the plaintiff] disavow[ed] any challenge to the FCCs RF standards, that is the
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essence of his complaint. . . . In order for [the plaintiff] to succeed, he necessarily must establish that
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cell phones abiding by the FCCs SAR guidelines are unsafe to operate without a headset. Id. at
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122. The court then concluded that there was obstacle preemption, particularly because regulatory
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situations in which an agency is required to strike a balance between competing statutory objectives
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lend themselves to a finding of conflict preemption. Id. at 123.
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The reason why state law conflicts with federal law in these balancing
situations is plain. When Congress charges an agency with balancing
competing objectives, it intends the agency to use its reasoned
judgment to weigh the relevant considerations and determine how best
to prioritize between these objectives. Allowing state law to impose a
different standard permits a re-balancing of those considerations. A
state-law standard that is more protective of one objective may result
in a standard that is less protective of others.
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Id. The FCC was tasked with a balancing act not only to protect[] the health and safety of the
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public, but also [to] ensur[e] the rapid development of an efficient and uniform network, one that
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provides effective and widely accessible service at a reasonable cost. Id. at 125. Were the FCCs
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standards to constitute only a regulatory floor upon which state law can build, juries could re-
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balance the FCCs statutory objectives and inhibit the provision of quality nationwide service. Id.
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Moreover, in Farina, the Third Circuit also stated that uniformity was one of the purposes
underlying the TCA:
The wireless network is an inherently national system. In order to

ensure the network functions nationwide and to preserve the balance
between the FCCs competing regulatory objectives, both Congress
and the FCC recognized uniformity as an essential element of an
efficient wireless network. Subjecting the wireless network to a
patchwork of state standards would disrupt that uniformity and place
additional burdens on industry and the network itself.
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Id. at 126.
Finally, as noted in Farina, the legislative history for the TCA, which instructed the FCC to
to prescribe and make effective rules regarding the environmental effects of radio frequency
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emissions, 104 P.L. 104 (1996) (discussing 704), includes a House Report that also indicates
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uniformity is an important goal. The House Report states, inter alia:
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The Committee finds that current State and local requirements, siting
and zoning decisions by non-federal units of government, have created
an inconsistent and, at times, conflicting patchwork of requirements
which will inhibit the deployment of Personal Communications
Services (PCS) as well as the rebuilding of a digital technology-based
cellular telecommunications network. The Committee believes it is in
the national interest that uniform, consistent requirements, with
adequate safeguards of the public health and safety, be established as
soon as possible. Such requirements will ensure an appropriate
balance in policy and will speed deployment and the availability of
competitive wireless telecommunications services which ultimately
will provide consumers with lower costs as well as with a greater
range and options for such services.
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H.R. Rep. No. 104-204, at 94 (1996).6

But even though Farina persuasively identifies the purposes underlying the TCA provision
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at issue, the limited disclosure mandated by the Berkeley ordinance does not, with one exception,
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impose an obstacle to those purposes. As noted above, the notice required by the City ordinance
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states as follows:
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The Court notes, however, that statement in the House Report is not clearly targeted at the
requirement that the agency make rules regarding RF energy emissions. This is because 704 of the
TCA concerned not only this directive but also another i.e., that the FCC prescribe a national
policy for the siting of commercial mobile radio services facilities. H.R. Rep. No. 104-204, at 94
(also stating that [t]he siting of facilities cannot be denied on the basis of Radio Frequency (RF)
emission levels which are in compliance with the Commission RF emission regulated levels).
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The City of Berkeley requires that you be provided the following

notice:
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To assure safety, the Federal Government requires that cell phones

meet radio frequency (RF) exposure guidelines. If you carry or use
your phone in a pants or shirt pocket or tucked into a bra when the
phone is ON and connected to a wireless network, you may exceed the
federal guidelines for exposure to RF radiation. This potential risk is
greater for children. Refer to the instructions in your phone or user
manual for information about how to use your phone safely.
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Berkeley Mun. Code 9.96.030(A). This disclosure, for the most part, simply refers consumers to
the fact that there are FCC standards on RF energy exposure standards which assume a minimum
spacing of the cell phone away from the body and advises consumers to refer to their manuals
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regarding maintenance of such spacing. The disclosure mandated by the Berkeley ordinance is
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consistent with the FCCs statements and testing procedures regarding spacing. See, e.g., FCC
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Consumer Guide (advising on some simple steps that you can take to reduce your exposure to RF
13
energy from cell phones[;] [f]or example, wireless devices only emit RF energy when you are using
14
them and, the closer the device is to you, the more energy you will absorb); 2013 FCC
15
Reassessment, 28 F.C.C. Rcd. at 3588 (stating that Commission calculations . . . suggest that some
16
devices may not be compliant with our exposure limits without the use of some spacer to maintain a
17
separation distance when body-worn, although this conclusion is not verifiable for individual
18
devices since a test without a spacer has not been routinely performed during the body-worn testing
19
for equipment authorization). It is also consistent with the FCCs own requirement that cell phone
20
manufacturers disclose to consumers information and advice about spacing. See FCC KDB, No.
21
447498, General RF Exposure Guidelines, 4.2.2(4). Thus, the ordinance does not ban something
22
the FCC authorizes or mandates. And CTIA has failed to point to any FCC pronouncement
23
suggesting that the agency has any objection to warning consumers about maintaining spacing
24
between the body and a cell phone. Moreover, the City ordinance, because it is consistent with FCC
25
pronouncements and directives, does not threaten national uniformity.
26
There is, however, one portion of the notice required by the City ordinance that is subject to
27
obstacle preemption namely, the sentence This potential risk is greater for children. Berkeley
28
Mun. Code 9.96.030(A). Notably, this sentence does not say that the potential risk may be greater
14
for children; rather, the sentence states that the potential risk is greater. But whether the potential
risk is, in fact, greater for children is a matter of scientific debate. The City has taken the position in
this lawsuit that its notice is simply designed to reinforce a message that the FCC already requires
and make consumers aware of FCC instructions and mandates, see, e.g., Oppn at 1, 4, but the FCC
has never made any pronouncement that there is a greater potential risk for children, and, certainly,
the FCC has not imposed different RF energy exposure limits that are applicable to children
specifically. At most, the FCC has taken note that there is a scientific debate about whether children
are potentially at greater risk. See, e.g., FCC Consumer Guide (Some health and safety interest
groups have interpreted certain reports to suggest that wireless device use may be linked to cancer
10
and other illnesses, posing potentially greater risks for children than adults. While these assertions
11
have gained increased public attention, currently no scientific evidence establishes a causal link
12
between wireless device use and cancer or other illnesses.); 2013 FCC Reassessment, 28 F.C.C.
13
Rcd. at 3501 ([T]he Commission invites health and safety agencies and the public to comment on
14
the propriety of our general present limits and whether additional precautions may be appropriate in
15
some cases, for example with respect to children.). Importantly, however, the FCC has not
16
imposed different exposure limits for children nor does it mandate special warnings regarding
17
childrens exposure to RF radiation from cell phones. Thus, the content of the sentence that the
18
potential risk is indeed greater for children compared to adults threatens to upset the balance struck
19
by the FCC between encouraging commercial development of all phones and public safety, because
20
the Berkeley warning as worded could materially deter sales on an assumption about safety risks
21
which the FCC has refused to adopt or endorse.7
22
23
7
24
25
26
27
28
At the hearing, the City argued that there is a greater potential risk because of behavioral
differences between children and adults. See Cortesi Decl. 5-8 (testifying, inter alia, that children
are heavy users of cell phones, that they often sleep with their phones on or next to their beds, that
they often text which leads to them keeping phones close to their bodies, etc.). The City contends
that CTIA has done nothing to refute the evidence submitted by the City on the behavioral
differences, and thus the evidence of record establishes that the potential risk is greater. This
argument, however, has little merit in light of the FCC evidence cited above, which indicates that at
most there is a scientific debate regarding the risk to children. Moreover, the wording of the notice
suggests to the general public that the danger to children arises from their inherent biological
susceptibility to RF radiation, not behavioral susceptibility.
15
Accordingly, although CTIA has not demonstrated a likelihood of success or even serious
question on the merits in its preemption challenge to the main portion of the notice, it has
established a likelihood of success on its claim that the warning about children is preempted.
2.
Having determined that the required statement, This potential risk is greater for children, is
likely preempted by federal law, the Court now addresses CTIAs likelihood of success with respect
to its First Amendment challenge to the remainder of the notice.8
First Amendment
a.
Level of Scrutiny
With respect to CTIAs First Amendment claim, the Court must first determine what First
10
Amendment test should be used to evaluate the ordinance at issue. CTIA contends that strict
11
scrutiny must be applied because the ordinance is neither content nor viewpoint neutral. See Reed v.
12
Town of Gilbert, 135 S. Ct. 2218, 2228, 2230 (2015) (stating that strict scrutiny applies either when
13
a law is content based on its face or when the purpose and justification for the law are content
14
based; adding that [g]overnment discrimination among viewpoints . . . is a more blatant and
15
egregious form of content discrimination). But in making this argument, CTIA completely
16
ignores the fact that the speech rights at issue here are its members commercial speech rights. See
17
Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (stating that [c]ommercial speech is defined
18
as speech that does no more than propose a commercial transaction; strong support that the
19
speech should be characterized as commercial speech is found where the speech is an advertisement,
20
the speech refers to a particular product, and the speaker has an economic motivation). The
21
Supreme Court has clearly made a distinction between commercial speech and noncommercial
22
speech, see, e.g., Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn, 447 U.S. 557, 562-63
23
8
24
25
26
27
28
The Court shall evaluate the ordinance as if the sentence regarding children were excised
from the text. This approach is appropriate in light of Berkeley Municipal Code 1.01.100 which,
in effect, allows for severance. See Berkeley Mun. Code 1.01.100 (If any section, subsection,
sentence, clause or phrase of this code is for any reason held to be invalid or unconstitutional, such
decision shall not affect the validity of the remaining portions of this code. The council hereby
declares that it would have passed this code, and each section, subsection, sentence, clause and
phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses
or phrases had been declared invalid or unconstitutional, and if for any reason this code should be
declared invalid or unconstitutional, then the original ordinance or ordinances shall be in full force
and effect.).
16
(1980) (stating that [t]he Constitution . . . accords a lesser protection to commercial speech than to
other constitutionally guaranteed expression); see also Natl Assn of Mfrs. v. SEC, No. 13-5252,
2015 U.S. App. LEXIS 14455, at *75-76 (D.C. Cir. Aug. 18, 2015) (noting that, as the Supreme
Court has emphasized, the starting premise in all commercial speech cases is the same: the First
Amendment values commercial speech for different reasons than non-commercial speech), and
nothing in its recent opinions, including Reed, even comes close to suggesting that that well-
established distinction is no longer valid.9
8
9
CTIA contends that, even if the commercial speech rubric is applied, the ordinance should be
subject to at least intermediate scrutiny, pursuant to Central Hudson:
If the communication is neither misleading nor related to
unlawful activity, . . . [t]he State must assert a substantial interest to be
achieved by restrictions on commercial speech. Moreover, the
regulatory technique must be in proportion to that interest. The
limitation on expression must be designed carefully to achieve the
States goal. Compliance with this requirement may be measured by
two criteria. First, the restriction must directly advance the state
interest involved. . . . . Second, if the governmental interest could be
served as well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive.
11
10
12
13
14
15
16
Central Hudson, 447 U.S. at 564. But as indicated by the above language, Central Hudson was
17
addressing restrictions on commercial speech. Here, the Court is not confronted with any
18
restrictions on CTIA members commercial speech; rather, the issue is related to compelled
19
disclosure of commercial speech. The Supreme Court has treated restrictions on commercial
20
speech differently from compelled disclosure of such speech. This difference in treatment was first
21
articulated in the plurality decision in Zauderer v. Office of Disciplinary Counsel of the Supreme
22
Court of Ohio, 471 U.S. 626 (1985), and subsequently affirmed by the majority opinion in Milavetz,
23
Gallp & Milavetz, P.A. v. United States, 559 U.S. 229 (2010).
24
Because Zauderer is a critical opinion, the Court briefly discusses its holding. The plaintiff
25
in Zauderer was an attorney. He ran an advertisement in which he publiciz[ed] his willingness to
26
27
28
Ironically, the classification of speech between commercial and noncommercial is itself a

content-based distinction. Yet it cannot seriously be contended that such classification itself runs
afoul of the First Amendment.
17
represent women who had suffered injuries resulting from their use of a contraceptive device known
as the Dalkon Shield Intrauterine Device. Id. at 630. In the advertisement, the plaintiff stated that
[t]he case are handled on a contingent fee basis of the amount recovered. If there is no recovery,
no legal fees are owed by our clients. Id. at 631. Based on the advertisement, the state Office of
Disciplinary Counsel filed a complaint against the plaintiff, alleging that the plaintiff had violated a
disciplinary rule because the advertisement fail[ed] to inform clients that they would be liable for
costs (as opposed to legal fees) even if their claims were unsuccessful and therefore was deceptive.
Id. at 633. The state supreme court agreed with the state Office of Disciplinary Counsel. The
plaintiff appealed, asserting that his First Amendment rights had been violated.
In resolving the issue, the plurality began by noting that
11
10
[o]ur general approach to restrictions on commercial speech is . . . by

now well settled. The States and the Federal Government are free to
prevent the dissemination of commercial speech that is false,
deceptive, or misleading. Commercial speech that is not false or
deceptive and does not concern unlawful activities, however, may be
restricted only in the service of a substantial governmental interest,
and only through means that directly advance that interest [i.e.,
Central Hudson].
12
13
14
15
16
17
Id. at 638.
The plurality pointed out, however, that there are material differences between disclosure
18
requirements and outright prohibitions on speech. Id. at 650. While, in some instances
19
compulsion to speak may be as violative of the First Amendment as prohibitions on speech, that is
20
not always the case. Id. Here, the state was not prescrib[ing] what shall be orthodox in politics,
21
religion, [etc].; rather,
22
23
24
25
26
27
[t]he State has attempted only to prescribe what shall be orthodox in

commercial advertising, and its prescription has taken the form of a
requirement that appellant include in his advertising purely factual and
uncontroversial information about the terms under which his services
will be available. Because the extension of First Amendment
protection to commercial speech is justified principally by the value to
consumers of the information such speech provides, appellants
constitutionally protected interest in not providing any particular
factual information in his advertising is minimal. Thus, in virtually all
our commercial speech decisions to date, we have emphasized that
because disclosure requirements trench much more narrowly on an
advertisers interest than do flat prohibitions on speech, [warnings]
28
18
or [disclaimers] might be appropriately required . . . in order to

dissipate the possibility of consumer confusion or deception.
2
3
4
5
We do not suggest that disclosure requirements do not

implicate the advertisers First Amendment rights at all. We recognize
that unjustified or unduly burdensome disclosure requirements might
offend the First Amendment by chilling protected commercial speech.
But we hold that an advertisers rights are adequately protected as long
as disclosure requirements are reasonably related to the States interest
in preventing deception of consumers.
6
7
8
9
11
10
12
13
14
15
16
17
Id. at 651 (emphasis added).

The plurality then held that this standard was satisfied in the case at hand.
Appellants advertisement informed the public that if there is no
recovery, no legal fees are owed by our clients. The advertisement
makes no mention of the distinction between legal fees and costs,
and to a layman not aware of the meaning of these terms of art, the
advertisement would suggest that employing appellant would be a
no-lose proposition in that his representation in a losing cause would
come entirely free of charge. The assumption that substantial numbers
of potential clients would be so misled is hardly a speculative one: it is
a commonplace that members of the public are often unaware of the
technical meanings of such terms as fees and costs terms that, in
ordinary usage, might well be virtually interchangeable. When the
possibility of deception is as self-evident as it is in this case, we need
not require the State to conduct a survey of the . . . public before it
[may] determine that the [advertisement] had a tendency to mislead.
The States position that it is deceptive to employ advertising that
refers to contingent-fee arrangements without mentioning the clients
liability for costs is reasonable enough to support a requirement that
information regarding the clients liability for costs be disclosed.
18
19
Id. at 652-53. Accordingly, Zauderer suggests that compelled disclosure of commercial speech,
20
unlike suppression or restriction of such speech, is subject to rational basis review rather than
21
intermediate scrutiny.
22
Approximately fifteen years later, a majority of the Supreme Court addressed Zauderer in
23
Milavetz. Milavetz concerned the constitutionality of the Bankruptcy Abuse Prevention and
24
Consumer Protection Act of 2005 (BAPCPA). The act regulated the conduct of debt relief
25
agencies, i.e., professionals who provide bankruptcy assistance to consumer debtors. Milavetz,
26
559 U.S. at 232. Part of the act required debt relief agencies to make certain disclosures in their
27
advertisements. See id. at 233. The parties disagreed as to whether Central Hudson or Zauderer
28
19
provided the applicable standard in evaluating the statute. The Supreme Court concluded that
Zauderer governed, noting as follows:
3
4
5
6
7
The challenged provisions of 528 share the essential features

of the rule at issue in Zauderer. As in that case, 528s required
disclosures are intended to combat the problem of inherently
misleading commercial advertisements specifically, the promise of
debt relief without any reference to the possibility of filing for
bankruptcy, which has inherent costs. Additionally, the disclosures
entail only an accurate statement identifying the advertisers legal
status and the character of the assistance provided, and they do not
prevent debt relief agencies . . . from conveying any additional
information.
Id. at 250. The Court then determined that 528s requirements that [the petitioner] identify itself
10
as a debt relief agency and include information about its bankruptcy-assistance an related services
11
are reasonably related to the [Governments] interest in preventing deception of consumers. Id. at
12
252-53. Accordingly, it upheld those provisions as applied to [the petitioner]. Id. at 253.
13
Since Zauderer and Milavetz, circuit courts have essentially characterized the Zauderer test
14
as a rational basis or rational review test. See, e.g., Natl Assn, 2015 U.S. App. LEXIS 14455, at
15
*55 (stating that [t]he Supreme Court has stated that rational basis review applies to certain
16
disclosures of purely factual and uncontroversial information; quoting Zauderer); King v.
17
Governor of N.J., 767 F.3d 216, 236 (3d Cir. 2014) (stating that Zauderer outlin[ed] the material
18
differences between disclosure requirements and outright prohibitions on speech and subject[ed] a
19
disclosure requirement to rational basis review); Safelite Group v. Jepsen, 764 F.3d 258, 259 (2d
20
Cir. 2014) (characterizing Zauderer as rational basis review); Centro Tepeyac v. Montgomery
21
County, 722 F.3d 184, 189 (4th Cir. 2013) (noting that, under Zauderer, disclosure requirements
22
aimed at misleading commercial speech need only survive rational basis scrutiny); Disc. Tobacco
23
City & Lottery, Inc. v. United States, 674 F.3d 509, 559 n.8 (6th Cir. 2012) (characterizing Zauderer
24
as a rational-basis rule); see also Pharm. Care Mgmt. Assn v. Rowe, 429 F.3d 294, 316 (1st Cir.
25
2005) (Boudin, J., concurring) (stating that [t]he idea that these thousands of routine regulations
26
require an extensive First Amendment analysis is mistaken because Zauderer is in essence a
27
rational basis test). This is consistent with the underlying theory of the First Amendment. As the
28
Second Circuit has noted, mandated disclosure of accurate, factual, commercial information does
20
not offend the core First Amendment values of promoting efficient exchange of information or
protecting individual liberty interests indeed, disclosure further, rather than hinders, the First
Amendment goal of the discovery of truth and contributes to the efficiency of the marketplace of
ideas. Natl Elec. Mfrs. Assn v. Sorrell, 272 F.3d 104, 114 (2d Cir. 2001).
CTIA protests that, even if Zauderer makes a distinction between restrictions on commercial
speech and compelled disclosure, the more lenient test articulated in Zauderer is applicable only
where the governmental interest at issue is the prevention of consumer deception, and that, here, the
governmental interest is in public health or safety, not consumer deception. But tellingly, no court
has expressly held that Zauderer is limited as CTIA proposes. In fact, several circuit courts have
10
held to the contrary. For example, in American Meat Institute v. United States Department of
11
Agriculture., 760 F.3d 18 (D.C. Cir. 2014), the D.C. Circuit, sitting en banc, considered a regulation
12
of the Secretary of Agriculture that required disclosure of country-of-origin information about meat
13
products. The plaintiffs argued that the regulation violated their First Amendment rights. The
14
question for the court was whether the test set forth in Zauderer applies to government interests
15
beyond consumer deception. Id. at 21. The court began by acknowledging that
16
17
18
19
20
21
22
23
24
Zauderer itself does not give a clear answer. Some of its

language suggests possible confinement to correcting deception.
Having already described the disclosure mandated there as limited to
purely factual and uncontroversial information about the terms under
which [the transaction was proposed], the Court said, we hold that
an advertisers rights are adequately protected as long as [such]
disclosure requirements are reasonably related to the States interest in
preventing deception of consumers. (It made no finding that the
advertisers message was more likely to deceive the public than to
inform it, which would constitutionally subject the message to an
outright ban. The Courts own later application of Zauderer in
Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229
(2010), also focused on remedying misleading advertisements, which
was the sole interest invoked by the government. Given the subject of
both cases, it was natural for the Court to express the rule in such
terms. The language could have been simply descriptive of the
circumstances to which the Court applied its new rule, or it could have
aimed to preclude any application beyond those circumstances.
25
26
27
28
The language with which Zauderer justified its approach,

however, sweeps far more broadly than the interest in remedying
deception. After recounting the elements of Central Hudson, Zauderer
rejected that test as unnecessary in light of the material differences
between disclosure requirements and outright prohibitions on speech.
Later in the opinion, the Court observed that the First Amendment
21
interests implicated by disclosure requirements are substantially

weaker than those at stake when speech is actually suppressed. After
noting that the disclosure took the form of purely factual and
uncontroversial information about the terms under which [the] services
will be available, the Court characterized the speakers interest as
minimal: Because the extension of First Amendment protection to
commercial speech is justified principally by the value to consumers
of the information such speech provides, appellants constitutionally
protected interest in not providing any particular factual information in
his advertising is minimal. All told, Zauderers characterization of
the speakers interest in opposing forced disclosure of such
information as minimal seems inherently applicable beyond the
problem of deception, as other circuits [e.g., the Second and First]
have found.
2
3
4
5
6
7
8
9
10
Id. at 21-22.
In National Electrical, the Second Circuit also rejected a reading of Zauderer as being
11
limited to a situation where the governments interest is prevention of consumer deception. The
12
case concerned a Vermont statute that require[d] manufacturers of some mercury-containing
13
products to label their products and packaging to inform consumers that the products contain
14
mercury and, on disposal, should be recycled or disposed of as hazardous waste. Natl Elec., 272
15
F.3d at 107. The court acknowledged that
16
17
18
19
20
21
the compelled disclosure at issue here was not intended to prevent

consumer confusion or deception per se, but rather to better inform
consumers about the products they purchase. Although the overall
goal of the statute is plainly to reduce the amount of mercury released
into the environment, it is inextricably intertwined with the goal of
increasing consumer awareness of the presence of mercury in a variety
of products. Accordingly, we cannot say that the statutes goal is
inconsistent with the policies underlying First Amendment protection
of commercial speech, described above, and the reasons supporting the
distinction between compelled and restricted commercial speech. We
therefore find that it is governed by the reasonable-relationship rule in
Zauderer.
22
23
24
25
26
We believe that such a reasonable relationship is plain in the

instant case. The prescribed labeling would likely contribute directly
to the reduction of mercury pollution, whether or not it makes the
greatest possible contribution. It is probable that some mercury lamp
purchasers, newly informed by the Vermont label, will properly
dispose of them and thereby reduce mercury pollution. By
encouraging such changes in consumer behavior, the labeling
requirement is rationally related to the states goal of reducing
mercury contamination.
27
28
We find that the Vermont statute is rationally related to the

states goal, notwithstanding that the statute may ultimately fail to
22
eliminate all or even most mercury pollution in the state.
Id. at 115; see also N.Y. St. Rest. Assn v. N.Y. City Bd. of Health, 556 F.3d 114, 133 (2d Cir. 2009)
(stating that Zauderers holding was broad enough to encompass nonmisleading disclosure
requirements).
The First and Sixth Circuits are in accord with the D.C. and Second Circuits. See Pharm.
Care, 429 F.3d at 310 n.8 (noting that we have found no cases limiting Zauderer [to potentially
deceptive advertising directed at consumers]); Disc. Tobacco, 674 F.3d at 556-57 (discussing
National Electrical approvingly); cf. Pharm. Care, 429 F.3d at 316 (Boudin, J., concurring) (stating
that [t]he idea that these thousands of routine regulations require an extensive First Amendment
10
analysis is mistaken because Zauderer is in essence a rational basis test). Furthermore, in an
11
unpublished decision, the Ninth Circuit addressed a San Francisco ordinance which also imposed a
12
notice requirement on cell phone retailers (based on RF energy emission), but the court did not hold
13
that Zauderer was limited to circumstances in which a state or local government was trying to
14
prevent potentially misleading advertising. See generally CTIA The Wireless Assn v. City &
15
County of San Francisco, 494 Fed. Appx. 752 (9th Cir. 2012). The court assumed Zauderer applied
16
to mandatory disclosures directed at health and safety, not consumer deception.
17
The circuit authority cited above is persuasive, and thus the Court disagrees with CTIAs
18
interpretation of Zauderer as being limited to preventing consumer deception. Indeed, it would
19
make little sense to conclude that the government has greater power to regulate commercial speech
20
in order to prevent deception than to protect public health and safety, a core function of the historic
21
police powers of the states. See, e.g., Hill v. Colorado, 530 U.S. 703, 715 (2000) (stating that [it] is
22
a traditional exercise of the States police powers to protect the health and safety of their
23
citizens); Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991) (noting that [t]he traditional police
24
power of the States is defined as the authority to provide for the public health, safety, and morals).
25
Moreover, there is a persuasive argument that, where, as here, the compelled disclosure is
26
that of clearly identified government speech, and not that of the private speaker, a standard even less
27
exacting than that established in Zauderer should apply. In Zauderer, the plaintiff-attorney was
28
being compelled to speak, and nothing about that compelled speech indicated it was anyones speech
23
but the plaintiff-attorneys. In contrast, here, CTIAs members are being compelled to communicate
a message, but the message being communicated is clearly the Citys message, and not that of the
cell phone retailers. See, e.g., Berkeley Mun. Code 9.96.030(A)-(B) (providing that the notice
shall state The City of Berkeley requires that you be provided the following notice and that the
notice shall include the Citys logo). In other words, while CTIAs members are being compelled
to provide a mandated disclosure of Berkeleys speech, no one could reasonably mistake that speech
as emanating from a cell phone retailer itself. Where a law requires a commercial entity engaged in
commercial speech merely to permit a disclosure by the government, rather than compelling speech
out of the mouth of the speaker, the First Amendment interests are less obvious. Notably, at the
10
hearing, CTIA conceded that there would be no First Amendment violation if the City handed out
11
flyers or had a poster board immediately outside a cell phone retailers store. But that then begs the
12
question of what is the difference between that conduct and the conduct at issue herein i.e., where
13
the City information is being provided at the sales counter inside the store instead of immediately
14
outside the store. While the former certainly seems more intrusive, that is more so because it seems
15
to impinge on property rights rather than on expressive rights. CTIA has not cited any appellate
16
authority addressing the proper standard of First Amendment review where the government requires
17
mandatory disclosure of government speech by a private party in the context of commercial speech.
18
To be sure, there are First Amendment limits to the governments ability to require that a
19
speaker carry a hostile or inconsistent message of a third party, at least in the context of
20
noncommercial speech. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515
21
U.S. 557 (1995) (holding that First Amendment rights of a parade organizer and council were
22
violated when they were required to include a gay rights organization in their parade); Pac. Gas &
23
Elec. Co. v. Pub. Utils. Commn of Cal., 475 U.S. 1 (1986) (plurality decision) (concluding that the
24
First Amendment rights of privately owned utility company were violated by an order from the
25
California Public Utilities Commission that required the company to include in its billing envelopes
26
speech of a third party with which the company disagreed); Miami Herald Pubg Co. v. Tornillo,
27
418 U.S. 241, 243, 256, 258 (1974) (holding that a state statute granting a political candidate a right
28
to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees
24
of a free press; noting that the statute exacts a penalty on the basis of the content of a newspaper
and also intru[des] into the function of editors). But, as stated above, these cases involved
noncommercial speech, not commercial speech as here. See, e.g., PG&E, 475 U.S. at 9 (noting that
companys newsletter, which was included in the billing envelopes, covered a wide range of topics,
from energy-saving tips to stories about wildlife conservation, and from billing information to
recipes, and thus extend[ed] well beyond speech that [simply] proposes a business transaction;
citing Zauderer and Central Hudson). This is a significant distinction, particularly because First
Amendment analysis in the commercial speech context assumes that more speech, so long as it is not
misleading, enhances the marketplace (as well as the marketplace of ideas). See Zauderer, 471 U.S.
10
at 651 (noting that the extension of First Amendment protection to commercial speech is justified
11
principally by the value to consumers of the information such speech provides). That is why the
12
Court in Zauderer afforded particular deference to the governments decision to compel disclosures
13
(in contrast to laws restricting speech). Here, the ordinance expressly affords retailers the right to
14
add comments to the notice, and there is no showing that adding comments would be a significant
15
burden on retailers.
16
Moreover, Miami Herald can be distinguished on an additional ground. More specifically, in
17
Miami Herald, the primary concern was the chilling of speech by the entity subject to the disclosure
18
requirement as a consequence of the challenged law. See Miami Herald, 418 U.S. at 257 (noting
19
that, [f]aced with the penalties that would accrue to any newspaper that published news or
20
commentary arguably within the reach of the right-of-access statute, editors might well conclude
21
that the safe course is to avoid controversy). In contrast to Miami Herald, here, there is no real
22
claim that the retailers speech is chilled by the Berkeley ordinance; in fact, as indicated above, the
23
ordinance expressly allows retailers to add other information at the retailers discretion. Berkeley
24
Mun. Code 9.96.030(B).
25
While CTIA has argued that being forced to engage in counter-speech (i.e., speech in
26
response to the City notice) is, in and of itself, a First Amendment burden (as indicated in PG&E),
27
that is not necessarily true where commercial speech is at issue. As the City points out, Zauderer
28
spoke only in terms of chilling speech as a First Amendment burden in the context of commercial
25
speech. See Zauderer, 471 U.S. at 651 (stating that unjustified or unduly burdensome disclosure
requirements might offend the First Amendment by chilling protected commercial speech); see also
Am. Meat, 760 F.3d at 27 (acknowledging the same; also stating that Zauderer cannot justify a
disclosure so burdensome that it essentially operates as a restriction on constitutionally protected
speech). This makes sense as the value of commercial speech comes from the information it
provides i.e., more speech, not less. That being said, even if CTIA were correct that the right not
to speak had some application to commercial speech, he need for counter-speech at least in the
circumstances presented herein are minimal, as discussed infra.
Thus, there is good reason to conclude that the First Amendment test applicable in this case
10
should be even more deferential to the government than the test in Zauderer. More particularly, the
11
rational basis test applicable to compelled display of government speech need not be cabined by the
12
Zauderers requirement that the compelled disclosure be purely factual and uncontroversial.
13
Zauderer, 471 U.S. at 651. In Zauderer, it made sense that the Supreme Court imposed the baseline
14
requirement that the compelled speech be purely factual and uncontroversial because, where speech
15
is in fact purely factual and uncontroversial, then the speakers interest in countering such
16
information is minimal. The Zauderer test thus insures any First Amendment interest against
17
compelled speech is minimal. But where there is attribution of the compelled speech to someone
18
other than the speaker in particular, the government the Zauderer factual-and-uncontroversial
19
requirement is not needed to minimize the intrusion upon the plaintiffs First Amendment interest.
20
Instead, under more general rational basis principles, the challenged law must be reasonably
21
related to a legitimate governmental interest. In particular, if the law furthers a legitimate
22
government interest in requiring disclosure of governmental speech, it should be upheld. This is not
23
to say that First Amendment interest in this context is nonexistent. Even though no speech is
24
compelled out of the mouth of retailers and there is no claim that their speech is chilled, the fact that
25
they may feel compelled to respond to Berkeleys notice arguably implicates to some extent the First
26
Amendment. See PG&E, 471 U.S. at 15 (in case involving noncommercial speech, noting that the
27
company may be forced either to appear to agree with [third partys] views [included in the
28
companys billing envelope] or to respond). Because there is an arguable First Amendment
26
interest, it may reasonably be contended that the more exacting forum of rational basis review
(which some commentators have labeled rational basis with bite, see Bishop v. Smith, 760 F.3d
1070, 1099 (10th Cir. 2014) (citing law review articles addressing rational basis with bite,
rational basis with teeth, or rational basis plus); Powers v. Harris, 379 F.3d 1208, 1224-25 n.21
(10th Cir. 2004) (same)), which requires an examination of actual state interests and whether the
challenged law actually furthers that interest rather than the traditional rational basis review which
permits a law to be upheld if rationally related to any conceivable interest. Compare Romer v.
Evans, 517 U.S. 620 (1996) (holding that a Colorado constitutional amendment that prohibited all
legislative, executive, or judicial action designed to protect homosexual persons from discrimination
10
lacks a rational relationship to legitimate state interests); City of Cleburne, Tex. v. Cleburne Living
11
Ctr., 473 U.S. 432 (1985) (striking down under rational basis city council decision preventing group
12
home for mentally disabled); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating under rational basis
13
portion of statute excluding immigrant children from public schools), with Williamson v. Lee
14
Optical, 348 U.S. 483 (1955) (applying traditional rational relationship test in evaluating
15
constitutionality of legislation). See also Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d
16
1023, 1038, n 6 (E.D. Cal. 2007) (recognizing Cleburne/Romer approach commonly referred as
17
rational basis with bite).
18
For purposes of this opinion, the Court shall evaluate the Berkeley ordinance under the the
19
more rigorous rational basis review as well as the Zauderer test. As discussed below, both of these
20
standards have been met in the instant case.
21
22
b.
Application of Rational Basis Test
In identifying the government interest supporting the notice required by the ordinance,
23
Berkeley argues that it simply seeks to insure fuller consumer awareness of the FCCs SAR testing
24
procedures and directive to manufacturers to disclose the spacing requirements used to insured SAR
25
does not exceed stated levels. Promoting consumer awareness of the governments testing
26
procedures and guidelines obviously is a legitimate governmental interest. Compare Sorrell v. IMS
27
Health Inc., 131 S. Ct. 2653, 2672 (2011) (stating that the governments legitimate interest in
28
protecting consumers from commercial harms explains why commercial speech can be subject to
27
greater governmental regulation than noncommercial speech), with Intl Dairy Foods Assn v.
Amestoy, 92 F.3d 67, 74 (2d Cir. 1996) (stating that consumer curiosity alone is not a strong
enough state interest to sustain the compulsion of even an accurate, factual statement in a
commercial context). And the mandated notice (apart from the warning about risk to children)
furthers and is reasonably related that governmental interest. As noted in the preemption analysis
above, nothing in the required Berkeley notice contradicts what the FCC has said and done, and the
upshot of the notice (advising consumers to consult the cell phone instructions or user manual on
how to safely use the phone) tracks what the FCC requires.
CTIA argues that framing the governmental interest as insuring consumer awareness begs the
10
question and misses the real mark. It contends that the real asserted interest here is purported public
11
safety and that the mandated notice is misleading because it suggests a substantial risk to health that
12
does not in fact exist. To the extent the true ultimate governmental interest for the ordinance is
13
public health and safety (since the purpose of referring consumers to the user manual is so that
14
consumers will know how to use your phone safely), such an interest undoubtedly is a legitimate
15
public interest. See, e.g., Hispanic Taco Vendors v. Pasco, 994 F.2d 676, 680 (9th Cir. 1993)
16
(finding ordinance that regulated itinerant vending and imposed licensing fees supported by
17
legitimate governmental interests in, e.g., health and safety). The question then is whether the
18
ordinance is reasonably related to such interest. Notwithstanding CTIAs argument to the contrary,
19
the Court concludes that it is.
20
While there is scientific uncertainty as to the relationship between SAR levels and the risk
21
of, e.g., cancer, and there is scientific debate about whether nonthermal as well as thermal effects of
22
RF radiation may pose health risks, there is a reasonable scientific basis to believe that RF radiation
23
at some levels can and do present health risks. The SAR limits were established by the FCC in the
24
interests of safety in view of the potential risks of RF radiation exposure. Although current
25
maximum SAR levels set by the FCC were designed to provide a comfortable margin, at least with
26
respect to risks posed by the thermal effect of RF radiation, the FCC has in fact established specific
27
limits to SAR exposure and uses those limits in the testing and approval of cell phones for sale to the
28
public. And testing procedures governed by FCC rules incorporating those SAR limits assume a
28
minimal amount of spacing of the cell phone from the body, without which SAR levels may exceed
the established guidelines.
recognized that excessive RF radiation is potentially dangerous[;] [i]t did so when it balanced that
risk against the need for a practical nationwide cell phone system, and [t]he FCC has never said
that RF radiation poses no danger at all, only that RF radiation can be set at acceptable levels),
revd on other grounds, 494 Fed. Appx. 752 (9th Cir. 2012). Unless the Court were to find that the
FCC guidelines themselves are scientifically baseless and hence irrational which no one has asked
this Court to do the mandated notice here, being predicated on the FCCs guidelines, is reasonably
related to a legitimate governmental interest.10 In short, so long as the challenged law requiring
See CTIA, 827 F. Supp. 2d at 1062 (noting that the FCC has implicitly
10
display and disclosure of governmental message in the context of commercial speech is supported by
11
some reasonable scientific basis, it is likely to pass the rational basis test applicable under the First
12
Amendment.
13
14
c.
Application of Zauderer Test
Even if the ordinance is subject to the more specific Zauderer test,11 see CTIA, 494 Fed.
15
Appx. at 752 (addressing San Francisco ordinance also imposing a notice requirement on cell phone
16
retailers and applying Zauderer), the Berkeley ordinance would likely be upheld. Under Zauderer,
17
the predicate requirement is that the compelled speech must be factual and uncontroversial. But
18
how a court should determine whether such speech is factual and uncontroversial is not clear.
19
20
10
21
22
23
24
25
The mere fact of scientific uncertainty and/or inexactitude does not render the
governments interest in issuing safety warnings to the public irrational or unreasonable. Such
uncertainty and inexactitude inheres in the assessment of any risk. To require the government to
prove a particular quantum of danger before issuing safety warnings would jeopardize an
immeasurable number of laws, regulations, and directives. See Natl Elec., 272 F.3d at 116 (taking
note of the potentially wide-ranging implications of NEMAs First Amendment complaint, as
[i]nnumerable federal and state regulatory programs require the disclosure of product and other
commercial information, ranging from securities disclosures and disclosures in prescription drug
advertisements to tobacco and nutritional labeling and Californias Proposition 65).
11
26
27
28
At the hearing, the Court discussed with the parties who had the burden of proof with
respect to the Zauderer test. Where a commercial speech restriction is at issue, the party seeking to
uphold the restriction bears the burden of proof in justifying it. See Thompson v. W. States Med.
Ctr., 535 U.S. 357, 373 (2002). But here, the Court is not dealing with a commercial speech
restriction but rather a compelled disclosure. For purposes of this opinion, the Court need not
resolve the issue of who bears the burden of proof.
29
For example, a good case can be made that a court should tread carefully before deeming
compelled speech controversial for Zauderer purposes. As the Sixth Circuit has noted, facts alone
can disconcert, displease, provoke an emotional response, spark controversy, and even overwhelm
reason; thus, the court rejected the underlying premise that a disclosure that provokes a visceral
response must fall outside Zauderers ambit. Disc. Tobacco, 674 F.3d at 569 (adding that whether
a disclosure is scrutinized under Zauderer turns on whether the disclosure conveys factual
information or an opinion, not on whether the disclosure emotionally affects its audience or incites
controversy). The Sixth Circuit also made the point that the use of the word uncontroversial
appeared only once in Zauderer and that elsewhere the Zauderer plurality simply refer[red] to a
10
commercial speaker disclosing factual information and accurate information. Id. at 559 n.8
11
(citing Zauderer, 471 U.S. at 651 & n.14). Furthermore, in Milavetz, the Supreme Court did not
12
repeat the use of the term and instead use[d] the language required factual information and only an
13
accurate statement when describing the characteristics of a disclosure that is scrutinized for a
14
rational basis. Id. (emphasis in original; citing Milavetz, 1130 S. Ct. at 1339-40). Accordingly, this
15
Court agrees with the Sixth Circuit that the term uncontroversial should generally be equated with
16
the term accurate.
17
As for the requirement that the compelled speech be factual (or accurate), in any given case,
18
it is easy to conceive of an argument that, even if the compelled speech is technically accurate, (1) it
19
is still suggestive of an opinion or (2) it is misleading. For example, on the former, one could
20
contend that the mere fact that the government is compelling the speech in the first place indicates
21
that it is the governments opinion that there is a point of concern for the public. One could also
22
argue that the compelled speech is misleading because it omits more specific information.
23
But Zauderer cannot be read to establish a factual and uncontroversial requirement that
24
can be so easily manipulated that it would effectively bar any compelled disclosure by the
25
government. This is particularly true where public health and safety are at issue, as in the instant
26
case. Any time there is an element of risk to public health and safety, practically any speech on the
27
matter could be deemed misleading unless there were a disclosure of everything on each side of the
28
scientific debate an impossible task. One could easily imagine that an overly rigorous factual and
30
uncontroversial test would render even the Surgeon Generals textual warnings found on cigarette
packages a violation of the First Amendment. See 15 U.S.C. 1333(a) (listing warnings, including
Tobacco smoke can harm your children, Tobacco smoke causes fatal lung disease in
nonsmokers, and Quitting smoking now greatly reduces serious risks to your health); see also
Natl Elec., 272 F.3d at 116 (taking note of the potentially wide-ranging implications of NEMAs
First Amendment complaint, as [i]nnumerable federal and state regulatory programs require the
disclosure of product and other commercial information, ranging from securities disclosures and
disclosures in prescription drug advertisements to tobacco and nutritional labeling and Californias
Proposition 65).
10
Turning to the City ordinance at issue here, the Court finds that the factual-and-
11
uncontroversial predicate requirement has likely been met, particularly as the Court has now found
12
the sentence regarding children preempted. With that sentence excised, the ordinance provides in
13
relevant part as follows:
14
The City of Berkeley requires that you be provided the following

notice:
15
16
17
18
To assure safety, the Federal Government requires that cell phones

meet radio frequency (RF) exposure guidelines. If you carry or use
your phone in a pants or shirt pocket or tucked into a bra when the
phone is ON and connected to a wireless network, you may exceed the
federal guidelines for exposure to RF radiation. This potential risk is
greater for children. Refer to the instructions in your phone or user
manual for information about how to use your phone safely.
19
20
21
Berkeley Mun. Code 9.96.030(A).

The notice contains accurate and uncontroversial information i.e., that the FCC has put
22
limits on RF energy emission with respect to cell phones and that wearing a cell phone against the
23
body (without any spacer) may lead the wearer to exceed the limits. This is consistent with the
24
FCCs directive to cell phone manufacturers to advise consumers about minimum spacing to be
25
maintained between the body and a cell phone, and although there is in fact a good safety margin (at
26
least for thermal effects of RF radiation), nothing indicates that the FCC objects to informing
27
consumers about spacing the phone away from the body.
28
31
CTIA takes issue with the use of the words safety and radiation, but the use of both
words is accurate and uncontroversial. Regarding safety, the FCC clearly imposed limits because
of safety concerns. The limits that the agency ultimately chose reflected a balancing of the risk to
public health and safety against the need for a practical nationwide cell phone system, but it cannot
be denied that safety was a part of that calculus. See CTIA, 827 F. Supp. 2d at 1062 (in the San
Francisco ordinance case, noting that, [e]ven the FCC has implicitly recognized that excessive RF
radiation is potentially dangerous because it balanced that risk against the need for a practical
nationwide cell phone system[;] [t]he FCC has never said that RF radiation poses no danger at all,
only that RF radiation can be set at acceptable levels), revd on other grounds, 494 Fed. Appx. 752
10
(9th Cir. 2012). As for the term radiation, RF energy is undisputedly a form of radiation. See
11
2013 FCC Reassessment, 28 F.C.C. Rcd. at 3585 (stating that RF energy is a form of
12
electromagnetic radiation that is emitted by cell phones). That the City notice does not make the
13
finer distinction that RF energy is non-ionizing radiation rather than ionizing radiation is immaterial
14
as that distinction would likely have little meaning to the public. As for CTIAs contention that
15
there may be a negative association with nuclear radiation (ionizing radiation), that seems unlikely,
16
particularly in this day and age when radiation comes from various sources in everyday life,
17
including, e.g., radios, televisions, and microwave ovens. No one seriously contends that consumers
18
are likely to believe cell phones emit nuclear radiation or something akin to that.
19
Finally, CTIA protests that the notice is misleading because, even if a cell phone is worn
20
against the body, it is unlikely that the federal guidelines for SAR will be exceeded. See Mot. at 15-
21
16 (arguing thatthis may be possible only with the device transmitting continuously and at
22
maximum power [such as might happen during a call with a handset and the phone in the users
23
pocket at the fringe of a reception area], and that using a device against the body without a spacer
24
will generally result in an actual SAR below the maximum SAR testing). But as indicated above,
25
the Court is wary about any contention that a compelled disclosure particularly where the message
26
in the disclosure is attributed to the government is misleading simply because the disclosure does
27
not describe with precision the magnitude of the risk; the point remains that the FCC established
28
certain limits regarding SAR, limits which have not been challenged as illegal. The mandated
32
disclosure truthfully states that federal guidelines may be exceeded where spacing is not observed,
just as the FDA accurately warns that Tobacco smoke can harm your children. More importantly,
the sentence criticized by CTIA is tempered by the following sentence: Refer to the instructions in
your phone or user manual for information about how to use your phone safely. That is the upshot
of the disclosure users are advised to consult the manual wherein the FCC itself mandates
disclosures about maintaining spacing.
Guidelines, 4.2.2(4). This is, in essence, factual in nature for purposes of Zauderer.
8
9
For the foregoing reasons, the Court finds that the City notice, with the sentence regarding
children excised from the text on preemption grounds, likely meets the Zauderer factual-anduncontroversial predicate requirement.
11
10
12
See FCC KDB, No. 447498, General RF Exposure
d.
Government Interest
As indicated above, under the Zauderer test, if the disclosure requirement is factual and
13
uncontroversial, then it does not violate the First Amendment so long as it is reasonably related to
14
the governmental interest. This test has been met, for largely the reasons articulated above in
15
discussing the traditional rational review test. Given the fact that the spacing requirements
16
employed by the FCC were established to insure maximum specific levels of SAR are not exceeded
17
and the FCC acknowledges there is a connection between SAR and safety, even if the precise
18
parameters and limits are matters of scientific debate, the ordinance appears reasonably related to
19
a legitimate government interest.
20
e.
21
Undue Burden
Finally, CTIA contends that the disclosure requirement here cannot be upheld because it still
22
violates the First Amendment as it is unduly burdensome. But for this argument to succeed, CTIA
23
cannot show just any kind of burden; rather, it must show a First Amendment burden, i.e., a burden
24
on speech.
25
CTIA has not made any argument that the City ordinance would chill its or its members
26
speech; rather, it contends that there is a burden on its or its members speech because they would
27
rather remain silent but, with the compelled disclosure, are now being forced to engage in counter-
28
speech. As noted above, the City asserts that, where commercial speech is at issue, the only
33
cognizable burden is chilling of speech, not the burden of being compelled to speak. While this
position has some grounding in Zauderer, which identified only the chilling of commercial speech
as a burden, see Zauderer, 471 U.S. at 651, the Court need not definitively resolve whether
compelled commercial counter-speech can be an undue burden because, even accepting that it can,12
the burden here to CTIA or its members is nothing more than minimal. The ordinance gives retailers
the discretion to add their own speech to Berkeleys message. And because the Citys required
notice contains factual and uncontroversial information, the need for corrective counter-speech is
minimal.
f.
10
Summary on First Amendment Claim
On the first preliminary injunction factor, the Court cannot say that CTIA has established a
11
strong likelihood of success on the merits with respect to its First Amendment claim. Nor has it
12
raised serious question on the merits. While the sentence in the Berkeley ordinance regarding the
13
potential risk to children is likely preempted, the remainder of the City notice is factual and
14
uncontroversial and is reasonably related to the Citys interest in public health and safety.
15
Moreover, the disclosure requirement does not impose an undue burden on CTIA or its members
16
First Amendment rights.
17
C.
18
Likelihood of Irreparable Harm and Balancing of Equities

CTIAs argument on both the likelihood of irreparable harm and the balancing of equities
19
largely depends on there being preemption or a First Amendment violation in the first place.13 See
20
Mot. at 21 (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (stating that the loss of First
21
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
22
injury)). But, as discussed above, the likelihood of success on both the preemption and First
23
Amendment claims is weak once the sentence on children is excised from the text of the City notice.
24
25
26
27
28
12
As noted above, there is an arguable First Amendment interest in not being compelled to
respond to speech of a third party, though the only precedent for such a proposition is in the context
of noncommercial speech.
13
CTIA also argues irreparable harm to its members customer goodwill and business
reputations and from the threatened enforcement of a preempted ordinance, see Mot. at 22, but
ultimately these arguments are predicated on the First Amendment argument. In any event, CTIA
has made no satisfactory showing that its business interests are jeopardized by the Berkeley notice if
the warning about children is excised.
34
Accordingly, the second and third preliminary injunction factors, like the first, do not weigh in
CTIAs favor.
D.
Public Interest
Finally, the fourth preliminary injunction factor does not weigh in CTIAs favor again
because of the weakness of its claims on the merits. CTIA contends that the public interest does not
weigh in favor of the City because accurate and balanced disclosures regarding RF energy are
already available, Mot. at 23 (emphasis in original), but the City has a fair point that, in spite of the
availability, there is evidence that the public does not know about those disclosures. See, e.g.,
Jensen Decl., Ex. A (survey) (reflecting that a majority of persons surveyed were, e.g., not aware
10
that the governments radiation tests to assure the safety of cell phones assume that a cell phone
11
would not be carried against your body, but would instead be held at least 1- to 15 millimeters from
12
your body). Furthermore, as suggested above, there is a public interest in public safety as well as
13
assuring fuller consumer awareness, particularly where the federal government through the FCC has
14
endorsed consumer awareness by requiring that cell phone manufacturers provide information about
15
spacing to consumers.
16
17
III.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part CTIAs motion for a
18
preliminary injunction. The motion is granted to the extent the Court finds a likely successful
19
preemption claim with respect to the sentence in the City notice regarding childrens safety. The
20
motion is denied to the extent the Court finds that a First Amendment claim and preemption claim
21
are not likely to succeed on the remainder of the City notice language.
22
The Berkeley ordinance is enjoined, unless and until the sentence in the City notice
23
regarding children safety is excised from the notice.
24
This order disposes of Docket Nos. 4 and 36.
25
IT IS SO ORDERED.
26
Dated: September 21, 2015

_________________________
EDWARD M. CHEN
United States District Judge
27
28
35

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page1 of 35

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CTIA THE WIRELESS ASSOCIATION,

United States District Court

No. C-15-2529 EMC

ORDER GRANTING IN PART AND

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page2 of 35

emitted by cell phones.

FACTUAL & PROCEDURAL BACKGROUND

United States District Court

A Cell phone retailer shall provide to each customer who buys

The notice required by this Section shall either be provided to

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page3 of 35

include the Citys logo, be printed on a poster no less than

Berkeley Mun. Code 9.96.030.

Requirements for the testing of cell phones were established by

These requirements established Specific Absorption Rates

To protect the safety of their consumers, manufacturers

Consumers are not generally aware of these safety

Currently, it is much more common for cell phones to be

Some consumers may change their behavior to better protect

While the disclosures and warnings that accompany cell

United States District Court

See 47 C.F.R. 2.1093 (setting RF energy exposure limits).

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page4 of 35

The purpose of this Chapter is to assure that consumers have

Berkeley Mun. Code 9.96.010.

United States District Court

Guide, Wireless Devices and Health Concerns, available at

https://www.fcc.gov/guides/wireless-devices-and-health-concerns (last visited September 17, 2015)

First, as CTIA alleges in its complaint,

FCC KDB Guidelines

[t]he FCCs Office of Engineering and Technology Knowledge

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page5 of 35

obtained during testing).

Specific information must be included in the operating manuals to

United States District Court

FCC KDB, No. 447498, General RF Exposure Guidelines, 4.2.2(4), available at

https://apps.fcc.gov/oetcf/kdb/forms/FTSSearchResultPage.cfm?switch=P&id=20676 (last visited

September 17, 2015).

FCC Consumer Guide

Several US government agencies and international organizations work cooperatively to

with any known health problems. FCC Consumer Guide.

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page6 of 35

our current requirements. Id.

For the Northern District of California

United States District Court

necessary for communications; operation at maximum power occurs infrequently. Second,

2013 FCC Reassessment

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page7 of 35

reassessed. Id. at 3500.

We adopted our present exposure limits in 1996, based on guidance

United States District Court

The FCC included the following comments in its Reassessment:

could be efficient and practical. Id. at 3501-02.

precautionary measures, and evaluation procedures. Specifically, we seek comment on the

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page8 of 35

point-of-sale, or on a website. Id. at 3502.